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Constructive Dismissal

Supreme Court of Canada clarifies when duty to mitigate requires returning to work with same employer

Jurisdiction: - Yukon
Sector: - Unions

In Evans v. Teamsters Local Union No. 31, 2008 SCC 20, which involved a long-serving business agent of the Teamsters Local Union No. 31, the Supreme Court of Canada clarified that there is no principled reason to distinguish between wrongful dismissal and constructive dismissal situations when evaluating the employee's duty to mitigate his or her damages.

Although in some instances the relationship between the employee and the employer will be less damaged where constructive rather than wrongful dismissal has occurred, this will not always be the case. The nature of the employee/employer relationship will need to be assessed on a case by case basis when evaluating the reasonableness of the employee's mitigation efforts.

Under both scenarios, it will be necessary in some circumstances for the dismissed employee to mitigate his or her damages by returning to work for the same employer.

As further set out in the case headnote:  read more »

"Senior's forced retirement found to be constructive dismissal by B.C.'s top court"

Jurisdiction: - British Columbia
Sector: - Forestry

Cristin Schmitz wrote an article entitled "Senior's forced retirement found to be constructive dismissal by B.C.'s top court". It appeared in the February 15, 2008, issue of The Lawyers Weekly. The article reviews the BC Court of Appeal's decision in Fisher v. Lakeland Mills Ltd., 2008 BCCA 42.

"Current Issues in Mitigation: The Duty to Mitigate in the Face of a Constructive Dismissal or Re-Employment Offer"

Jurisdiction: - British Columbia

Shanti P. Reda and Suzanne M. Forestell, of Kent Employment Law in Vancouver, have written a paper on "Current Issues in Mitigation: The Duty to Mitigate in the Face of a Constructive Dismissal or Re-Employment Offer" (August 2007) which they presented at the 2007 British Columbia Employment Law CLE.

"Employee Discharge and Documentation in Ontario - Constructive Dismissal"

Jurisdiction: - Ontario

"Employee Discharge and Documentation in Ontario - Constructive Dismissal" (undated) is the title of a paper written by Janice Payne and Chris Rootham at the law firm Nelligan O’Brien Payne in Ottawa. The paper was written for the Lorman Education Services.

"The Hostile Workplace and Employer Liability"

A lawyer at Davis LLP has written a paper entitled "The Hostile Workplace and Employer Liability".

This very comprehensive paper, "examines some of the protections the British Columbia Courts have identified to address psychological harassment in the non-union workplace, including looking at the limits of those protections." Specifically, the author considers:

  1. claims in contract, and in particular, claims for constructive dismissal and consequential damages;
  2. claims in tort, and in particular the claim of tort in intentional infliction of mental suffering; and
  3. claims under statute, and in particular the availability of workers' compensation benefits for stress leave.

The paper also contains on overview of Quebec's psychological harassment provisions.

"Can An Employer Suspend A Non-Union Employee?"

Shane Smith, a lawyer at Miller Thomson, has written an article entitle, "Can An Employer Suspend A Non-Union Employee?" (April 25, 2005).

The article points to the decisions in Reininger v. Unique Personnel Canada Inc., [2002] O.J. No. 2826, and Hussey v. Canadian Pacific Hotels Corp., [2004] N.J. No. 152 for the proposition that:

...in workplaces where there is a history of suspending employees as a disciplinary tool, or where policies exist which indicate that suspensions may be used, the Courts have been inclined to find an implied power to suspend.